On Estlund's democratic authority

Authors
David Enoch
Hebrew University of Jerusalem
Abstract
For a state to be legitimate is for it to be permissible for the state to issue and enforce its commands (mostly laws), and for this to be permissible “owing to the process by which they were produced” (2).1 For a state to have authority is for it to have the power to morally require or forbid actions through commands, or the power to create duties (2).2 It seems that a state’s being democratic—in somewhat like the way in which the democracies we are familiar with are democratic—has something to do with its having both authority and legitimacy. But what, exactly? There is, after all, nothing obvious about the relation between democracy on the one hand and legitimacy and authority on the other. One may think that consent has something to do with it. But this would be wrong, because most of those supposedly under the authority of the state haven’t consented to anything of relevance (9). Implicit consent, if it is too implicit, so that the agent may not realize she is consenting, is no substitute for real consent, and if it is more explicit than that then, again, hardly anyone has consented to the state’s authority, not even in democracies (9). And most hypothetical consent theories fall prey to their own difficulties. So consent theory of the typical kind cannot ground political legitimacy and authority. (A very atypical kind of consent will nevertheless eventually emerge victorious.).
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